This fact sheet is aimed mainly at parents who are concerned that their child may have special educational needs that are not being met and may be considering making a complaint to the Ombudsman.

What is the Ombudsman's role in complaints about special educational needs?

The law generally prevents us from investigating complaints where the decision or issue complained about carries a right of appeal, reference or review to the First Tier Tribunal (Special Educational Needs and disability) (SEND). During the Education, Health and Care (EHC) plan assessment and review processes, there are several times an appeal right arises, for example, following a council’s decision not to assess a child for an EHC plan, a decision following an annual review to cease an EHC plan, or where a final EHC plan is issued but the parent disagrees with the content of the plan.  We also cannot investigate complaints about the process that led to a council reaching its decision, where the decision reached has a right of appeal, reference or review. Nor can we investigate a council’s conduct during the tribunal process.

SEND can also hear appeals about the health and social care aspects of an EHC plan, if these are raised alongside the educational provision.

If you have appealed to SEND, it is unlikely we will be able to investigate any aspect of a complaint which is a consequence of the appealed decision. This could include educational provision where the school named in the plan is the subject of the appeal. However, this will depend on the specific circumstances of each case.

The Ombudsman can investigate complaints about delays within the EHC assessment process. This includes delay in assessing a child and issuing an EHC plan, and delay or failing to carry out an annual review. We can also investigate complaints about a council’s failure to ensure a child receives provision set out in their EHC plan.

We can investigate complaints that a council has failed to implement a Tribunal recommendation related to educational provision in an EHC plan, or where a recommendation has been agreed, a failure to deliver the provision. We can also look at complaints about failure to implement recommendations related to social care provision in an EHC plan. We can investigate complaints about councils taking longer than 5 weeks to reach a decision about whether to agree to implement a Tribunal recommendation.

We can look at how the council has dealt with a request for a personal budget.

We can investigate complaints about the Local Offer. The Local Offer requires councils to provide advice and information about SEN provision in their area.

The Ombudsman cannot criticise a decision made by a council if it has followed the right processes in coming to that decision.

Can the Ombudsman look at the way the school has dealt with my child's special educational needs?

Yes, in some cases. If you complain the council is failing to arrange and maintain provision listed in an EHC plan in your child’s school, we can look at this, but can only make findings about the council, not the school. This is because the council has a duty to ensure the provision in an EHC plan is being delivered, even if it asks a school to deliver it on its behalf. The Ombudsman can look at how the council ensured the school provided the support as set out in the EHC plan. If we find fault causing injustice, we can make recommendations for what the council needs to do

No, if your complaint is about anything else. 

When can the Ombudsman become involved?

Most special educational needs are dealt with by the child’s school without any council involvement unless your child is being assessed for or has an EHC Plan. If you have concerns or a complaint about your child’s progress, and they are getting either no or only limited extra support at school, you should raise the matter with the headteacher or school SEN co-ordinator (SENCO). The Ombudsman cannot normally deal with your complaint at this stage because only the school is involved. This is because the Ombudsman can only look at the council’s actions and not those of your child’s school.

If you or the school believe that your child is failing to make sufficient progress with the level of support the school can provide, you can ask the council to carry out a statutory assessment of your child’s SEN. This is the point at which the council’s involvement starts and the Ombudsman may be able to help. 

How do I complain?

You should normally complain to the council first. Councils often have more than one stage in their complaints procedure and you will usually have to complete all stages before we will look at your complaint.

Then, if you are unhappy with the final outcome, or the council is taking too long to look into the matter - we think 12 weeks is reasonable - you can complain to us.

Usually, you should complain to us within 12 months of when you first knew about the problem. If you leave it any later, we may not be able to help.

For more information on how to complain, please read our step by step process.

What happens if the Ombudsman finds the council was at fault?

If the Ombudsman finds fault in how the council has addressed your child’s special educational needs we will consider the effect on you and your child. We may suggest a remedy ranging from an apology through to a financial remedy. . Where possible, we recommend action to put the person back in the position they would have been, had the fault not happened. Ideally, we would want the council to take action to address any loss of provision such as providing extra help for your child, and we would always want any continuing failings put right as quickly as possible.

Examples of some complaints we have considered

Other sources of information

For further information about the First Tier Tribunal (Special Educational Needs and Disability) (SEND) see their website: www.justice.gov.uk/tribunals/send

For more general help and advice contact the IPSEA at: www,ipsea.org.uk or CONTACT at www.contact.org.uk

Our fact sheets give some general information about the most common type of complaints we receive but they cannot cover every situation. If you are not sure whether we can look into your complaint, please contact us.

November 2023